Medical Malpractice Terminology: “Consent-to-Settle” clause and “Hammer” clause

Before we can have a discussion on the difference between these two terms, we must first define the Consent-to-Settle clause. This clause requires that an insurer, such as Doctors Direct Insurance, secures the insured’s approval before agreeing to settle a claim. Here at DDI, we have a Consent-to-Settle clause with all of the physicians we insure. The doctors we cover know that they will be fully involved during the settlement process from start to finish, and have final say in whether a claimant’s settlement proposal is accepted or rejected.

But why might a doctor not give his consent to settle?

There are many reasons. Sometimes a doctor will wish to fight a claim, as they may have done nothing wrong. We have all heard stories of opportunistic plaintiff lawyers that bring meritless suits before courts. The insured might feel that settling a meritless suit rewards a claimant and his lawyer with undeserved monetary rewards, when the insured feels that they have had no part in the alleged loss. A physician may also wish to fight a claim because he or she fears that the resulting settlement will damage his or her reputation. This is human nature. No one wants to be sued, and certainly no one wants to admit fault when they have done nothing wrong.

Doctors Direct Insurance will fight for you based on your recommendations. And because we are a company run by doctors, for doctors, we understand how important it is for you to have the right to defend yourself against meritless claims without the fear of having additional damages and costs levied upon you by defending yourself in court.

Many Medical Malpractice Insurers have an additional clause tucked into their Consent-to-Settle clause, tellingly named the Hammer clause.

Doctors Direct Insurance does not have a Hammer clause. And that’s a good thing for our customers.

Hammer clause states that if the insured physician goes against his carrier’s settlement recommendation, she will then be “on-the-hook” for any damages and costs over what the insurance company believes the claim could have settled for.

Let’s take a look at an example where a physician has medical malpractice insurance through a different carrier that uses aHammer clause. Imagine that same physician finds herself as a defendant against a $250,000 claim. The physician believes she has done nothing wrong and has in no way contributed to the claimant’s alleged loss. However, her carrier believes they can have the suit settled for $20,000. If the physician in our example, bound by the Hammer clause, decides to fight the lawsuit anyway, and the resulting damages and costs are in excess of the original $20,000 that the case could have settled for, then she will be obligated to pay any and all costs over that $20,000 out of pocket because of her policy’s Hammer clause. Between the judgment and legal costs incurred while fighting the suit, the numbers can add up quickly against a physician who fights and loses a lawsuit while being bound by a Hammer clause. Let’s say the judge awards the full amount in our hypothetical example of $250,000 dollars plus an additional $50,000 in legal fees. Because of the Hammer clause, she would be obligated to pay all monies over the original $20,000 that the carrier recommended she settle for, or in this example, $280,000.

Don’t get smacked by The Hammer! At Doctors Direct Insurance, you gain flexibility and influence by having the right to consent to any proposed settlements through our Consent-to-Settle clause, without the fear of incurring additional costs and damages, should you choose to fight a lawsuit.

Click here to chat with a claims specialist who can further help you understand the language of a new insurance policy with Doctors Direct Insurance.